Allianz Australia Insurance Limited v BUL

[2025] NSWPICMP 574

DETERMINATION OF REVIEW PANEL

CITATION:

Allianz Australia Insurance Limited v BUL [2025] NSWPICMP 574

CLAIMANT:

BUL

INSURER:

Allianz Australia Insurance Limited

REVIEW PANEL

SENIOR MEMBER:

Brett Williams

MEDICAL ASSESSOR:

Wayne Mason

MEDICAL ASSESSOR:

Surabhi Verma

DATE OF DECISION:

6 August 2025

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); section 7.26; whether degree of permanent impairment that resulted from psychological injury caused by the accident is greater than 10%; Medical Assessor found that major depressive disorder and panic disorder caused by the accident gave rise to a permanent impairment that was greater than 10%; observations in QBE Insurance (Australia) Limited v BPO adopted; Held – persistent depressive disorder with anxious distress caused by the accident gave rise to an 8% permanent impairment; MAC revoked; certified that the degree of permanent impairment as a result of accident caused psychological injury not greater than 10%.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION

The Review Panel:

1.     revokes the certificate of Medical Assessor Shen dated 27 March 2024, and

2.     certifies that the degree of permanent impairment of the claimant that has resulted from the injury caused by the acccident on 23 April 2021 is not greater than 10%.

STATEMENT OF REASONS

1. There is a dispute between [BUL] (claimant) and Allianz Australia Insurance Limited (insurer) about whether, for the purposes of the Motor Accident Injuries Act 2017 (MAI Act), her degree of permanent impairment as a result of a psychological injury caused by a motor accident at Somersby on 23 April 2021 (accident) is greater than 10% (dispute).

2. The dispute is a medical dispute, as defined by s 7.17 of the MAI Act, and a medical assessment matter: Schedule 2 cl 2(a) of the MAI Act.

3. The dispute was referred to Medical Assessor Shen for assessment. On 27 March 2024 the Medical Assessor certified that major depressive disorder and panic disorder were caused by the accident and gave rise to a permanent impairment that was greater than 10%[1] (Assessment).

   [1] The Medical Assessor found there was a 19% permanent impairment.

4. The insurer sought a review of the Assessment under s 7.26 of the MAI Act. The President’s Delegate subsequently determined that there was reasonable cause to suspect that the Assessment was incorrect in a material respect. The review application was accepted and referred to this Review Panel.

5. The Review Panel (Panel) has been constituted by the President of the Personal Injury Commission (Commission) to conduct the Review of the Assessment.

THE REVIEW

1. The Panel is to conduct the Review in accordance with s 7.26 of the MAI Act. Section 7.26(5A) provides that the panel is to be constituted by two medical assessors and a member assigned to the Motor Accidents Division of the Commission.

2. The Review is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6) MAI Act. Although styled a "review", the Panel is determining afresh the medical assessment matters referred to it: Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [9] per Leeming JA (Beazley P and Basten JA agreeing).

3. The Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 Personal Injury Commission Rules 2021 (Rules).

4. Version 9.3 of the Motor Accident Guidelines (Guidelines), effective from 6 December 2024, apply to the Review.

DIRECTIONS

1. On 11 March 2025 the Panel made directions for provision by the parties of a joint bundle and written submissions for the purposes of the Review. Those directions were varied on
   24 April 2025. A joint bundle was subsequently filed by the insurer and submissions were filed by each party.

PANEL DELIBERATIONS

1. The Panel convened on 20 May 2025, discussed the issues that arose in the Review, and determined that a re-examination of the claimant was required and would be conducted by its medical members.

2. The Panel convened again on 25 July 2025. The re-examination findings of the medical members of the Panel were discussed. The members of the Panel agreed on the outcome of the Review as recorded in the certificate.  

STATUTORY PROVISIONS

1. If there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, damages may not be awarded unless the degree of permanent impairment has been assessed by a medical assessor under Division 7.5: s 4.12(1) MAI Act.

2. The method of assessing the degree of impairment is dealt with in s 7.21, which is in the following terms:

   “7.21 Assessment of degree of permanent impairment

   (1)     The assessment of the degree of permanent impairment of an injured person for the purposes of this Act is to be made in accordance with the Motor Accident Guidelines. The assessed degree of permanent impairment is to be expressed as a percentage.

   (2)     Impairments that result from more than one injury arising out of the same motor accident are to be assessed together to assess the degree of permanent impairment of the injured person.

   (3)     In assessing the degree of permanent impairment, regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.

   (4)     A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured person until the assessor is satisfied that the impairment caused by the injury has become permanent.”

3. Clause 6.35 of the Guidelines states that psychiatric impairment is assessed in accordance with ‘Mental and behavioural disorders’, found in clauses [6.201]-[6.228] of the Guidelines.

4. Pre-existing impairment is addressed in clauses 6.31-6.33. In order to measure impairment caused by a specific event, a medical assessor must, in the case of an injured person with a pre-existing psychiatric diagnosis or diagnosable condition, estimate the overall pre-existing impairment using precisely the method set out in the Guidelines, and subtract this value from the current impairment rating: cl 6.218. Subsequent injuries are dealt with in cl 6.34.

5. The Guidelines state as follows with respect to causation of injury:

   “Causation of injury

   6.5    An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.

   6.6    Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:

   'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:

   1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.

   2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'

   This, therefore, involves a medical decision and a non-medical informed judgement.’

   6.7    There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

6. It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed psychiatric condition: Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [75]. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible: Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [50]. Further, s 5D and s 5E of the Civil Liability Act 2002 apply.

ASSESSMENT UNDER REVIEW

1. On 27 March 2024 Medical Assessor Shen certified that major depressive disorder and panic disorder caused by the accident gave rise to and impairment of 19%, and that the impairment was greater than 10%.

2. In his reasons the Medical Assessor recorded details of the claimant’s psychosocial and
   pre-accident history. She reported experiencing some emotional disturbance after her father’s death and saw a psychologist twice.

3. The claimant reported being involved in the accident but was unable to provide further details as she became “visibly distressed” and wanted to have a break. The Medical Assessor recorded that the claimant suffered physical injury as a result of the accident, including back pain, abdominal pain, and “pain all over the body”. She reported developing psychological symptoms, including being easily overwhelmed and irritable, leading to arguments with customers. She reported self-harming thoughts when she sees a knife.

4. The claimant reported that psychological therapy helped her manage anxiety. She had seen a psychiatrist and was prescribed medication. She said the medication had been “mildly helpful”. There were no further injuries since the accident.

5. The claimant reported ongoing pain symptoms, feeling depressed, with low energy and concentration. Her sleep had been disrupted, and her appetite was poor. She could not recall anything about the accident and did not have intrusive recollections. She denied having nightmares of the accident, but she has “random” nightmares. She said she has been triggered by seeing emergency vehicles and traffic jams, which might indicate a traffic accident, causing significant physiological and psychological distress. This has only happened twice. She has physical symptoms of tremors and headaches without any clear triggers.

6. The Medical Assessor’s findings on examination have been considered. He recorded that “[t]here were no major issues with inconsistencies”. Medical Assessor Shen diagnosed major depressive disorder and panic disorder. He was not satisfied the claimant met sufficient diagnostic criteria for post-traumatic stress disorder. In particular, criteria B was not met.

7. The Medical Assessor provided reasons and findings with respect to the Psychiatric Impairment Rating Scale (PIRS) and assessed a 17% whole person impairment (WPI). There was no pre-existing impairment. On the basis that the claimant has found treatment with therapy and medications mild to moderately helpful, the Medical Assessor determined that a “treatment effect of 2% is reasonable”, bringing the assessed impairment to 19%.

EVIDENCE

1. The documentary evidence before the Panel is contained in the joint bundle filed by the insurer. The Panel has considered all the material in the joint bundle.

2. Some of the evidence refers to “minor injury”. That term was replaced in the MAI Act by the term “threshold injury” as a result of amendments made by the Motor Accident Injuries Amendment Act 2022. References in these reasons to “minor injury” or “minor injuries” are references taken from documents created prior to 1 April 2023.

3. In her application for personal injury benefits dated 29 April 2021 (claim form) the claimant provided a description of the accident. She recorded that as she was “experiencing partial memory loss, [and that] the description is completed with help of my family and with pictures of scene”. She recorded:

   “… I was seating [sic] on the back passenger seat behind the driver when the car crash occurred. The vehicle at fault was involved in a multiple crash, I impacted the vehicle I was in, from the back at around/or more than 120km/hr forcefully pushing the vehicle forward and smashing the truck and partially distorting the back seats. According to the insurance company…the vehicle I was in is likely to be counted as a total loss”.

4. The claim form also refers to the injuries sustained by the claimant as a result of the accident. Among other things, there is reference to “post-accident shock”, “high anxiety”, difficulty sleeping, fatigue, partial memory loss, confusion, nausea and dizziness, limitations in neck movement and pain. It is recorded that the claimant’s usual occupation is a massage therapist, and that she had been off work after the accident for four to six weeks “or more”.

Certificates of assessment

1. On 29 October 2022 Medical Assessor Payten certified that left ear tinnitus and left ear hearing loss caused by the accident “is a minor injury” for the purposes of the MAI Act.

2. The Medical Assessor recorded in his reasons that there was a pre-accident history of some temporary ear blockage in 2019 after a flight and tinnitus in both ears that “disappeared within a few weeks”. The claimant was referred to a neuro-otologist, who diagnosed a superior semicircular canal bony dehiscence. She had no ongoing symptoms. Soon after the accident the claimant noticed a “noise like a windmill” which was an intermittent blowing noise. She did not take it seriously as it was only a minor symptom compared to her other symptoms of neck and back pain. Her tinnitus remains and can be very annoying, but it does not keep her awake at night probably because she takes an antidepressant medication that makes her a bit drowsy. She has noticed no deterioration in her left hearing since the accident, and thinks the hearing in both ears is equal.

3. The Medical Assessor found, based on the history and the audiogram findings, that the claimant has normal hearing in both ears. She has constant left-sided pulsatile tinnitus that was probably caused by the accident. Tinnitus without hearing loss meets the definition of a minor injury.

4. On 7 January 2023 Medical Assessor Cameron certified that a soft tissue injury to the claimant’s cervical spine caused by the accident was a minor injury and that a mild traumatic brain injury caused by the accident was not a minor injury.

5. The Medical Assessor recorded a history that the claimant was a passenger in a vehicle seated behind the driver that was hit from behind. She reported that after the accident she had ongoing symptoms, “particularly psychological symptoms”. The claimant returned to driving more than six months after the accident and returned to part-time work “about

   
   

   12 months” after the accident. She reported being nauseous when driving and said she is emotionally distressed in a vehicle. The claimant complained of trapezial pain and neck pain, together with intermittent chest, abdominal and thigh pain. Tinnitus in the left ear caused poor sleep.

6. Medical Assessor Cameron recorded that the claimant was “anxious and unsettled when talking about her situation.” He found her to be consistent in her presentation. The Medical Assessor found that the claimant sustained a mild traumatic brain injury and soft tissue injuries to her cervical spine as a result of the accident. She also had ongoing significant psychological symptoms. Because of the documented amnesia, the head injury is not a minor injury.

7. On 10 December 2023 Medical Assessor Cameron certified that the mild traumatic brain injury and soft tissue injury to the cervical spine gave rise to a permanent impairment of 0% and that the impairment was not greater than 10%.

8. In his reasons the Medical Assessor recorded that the claimant worked as a massage therapist for approximately 10 years and was the owner of a spa and massage business. She reported that her past health was good, and that she had no significant accidents or injuries. The reasons contain a history of the accident and the claimant’s subsequent symptoms and treatment. The claimant reported that she is nauseous when driving and is emotionally distressed in a vehicle. The Medical Assessor again recorded that the claimant was consistent in her presentation.

9. Medical Assessor Cameron found the claimant had recovered fully from the traumatic brain injury. She suffered a soft tissue injury to her cervical spine and had ongoing psychological symptoms. There was no evidence of an injury to her shoulder. The Medical Assessor’s reasons contain his assessment of permanent impairment.

10. On 18 March 2024 Medical Assessor Payten certified that the left ear tinnitus caused by the accident gave rise to a permanent impairment of 0% and that the impairment is not greater than 10%. The Medical Assessor’s reasons are consistent with the history and findings recorded in his earlier reasons relating to the minor injury assessment he conducted.

11. On 27 March 2024 Medical Assessor Cameron issued a combined certificate wherein he certified that the mild traumatic brain injury, the soft tissue injury to the cervical spine, and the left ear tinnitus caused by the accident give rise to a permanent impairment which is not greater than 10%.

Medico-legal reports

1. Dr George, psychiatrist, reported to the insurer on 16 May 2022. The claimant provided the following history of the accident:

   “…she said that she was on a Freeway heading towards Macquarie, according to her descriptions and her daughter was the driver in a car, travelling around 85kms per hour. Her husband was a front seat passenger, and she was the right rear seat passenger. She said that their vehicle was struck by another vehicle travelling at 120kms per hour behind them. She said that her daughter was able to bring the car to a stationary position after the impact.

   She indicated that she “blacked out” for about an hour at the time of the impact…”

2. In addition to physical symptoms the claimant reported that after the accident she had trouble sleeping and was having shortness of breath and palpitations associated with anxiety. She also reported struggling with her mood.

3. The claimant reported having counselling after her father’s death seven or eight years prior to the assessment. She reported that her and her husband ran a coffee shop. She worked there as a receptionist on a part time basis.

4. The doctor diagnosed chronic adjustment disorder with mixed anxiety and depressed mood, secondary to the claimant’s physical complaints and “the consequences of the accident generally”. The doctor did not diagnose post-traumatic stress disorder; the claimant having reported that she blacked out at the point of impact and did not have a memory of the accident. She did not report symptoms related to post-traumatic stress disorder.

5. Dr Chow, consultant psychiatrist, reported to the claimant’s solicitor on 21 March 2023. The doctor recorded that the claimant works two days a week as a receptionist in their Chinese massage store. The claimant gave a history of being involved in a high-speed accident. She had a temporary loss of consciousness and was disorientated. She had neck and shoulder pain. The neck pain persisted but was bearable. She is seeing a pain specialist.

6. The claimant reported that she has been psychologically affected by the accident, and that she had recurrent right tinnitus, headache, dizziness, palpitation and shortness of breath. She was not able to sleep and was having regular nightmares. She has limited recollection of the accident. She reported feeling unwell regularly especially with stomach discomfort. She gets startled easily with noise and is anxious being in a car. She gets irritable easily with people. She returned to driving after half a year and was very nervous early on. She is able to drive more often, a few times a week to the shops and work. She remains depressed and becomes anxious easily. The claimant had been referred to a psychologist and psychiatrist.

1. The claimant reported that she has ongoing poor concentration, is forgetful easily and gets lost easily when driving. She said she had a fainting or epileptic episode from loud noise in December 2022, and she saw the doctors at Hornsby. There has been no further episode since. Other than seeing a psychologist after her father’s death there was no psychological history.

2. The claimant reported ongoing sleeping disturbance, reduced flashbacks and nightmares, avoidant behaviour, triggers of psychological symptoms, low mood, anxiety, poor eating, weight gain, reduced interest in hobbies and activities, poor motivation and energy, and feelings of guilt, worthlessness and hopelessness.

3. Dr Chow diagnosed post-traumatic stress disorder and major depressive disorder. These conditions were caused by the accident. She required ongoing treatment. She was fit for “light duties, receptionist work”.

4. In a separate report of the doctor provided addressed the PIRS and assessed a 15% permanent impairment. The Panel has evaluated the doctor’s impairment assessment, including the classes allocated to each domain of functioning and the reasons provided in support of his findings.

5. On 4 April 2023 Dr Poplawski, orthopaedic surgeon, reported to the claimant’s solicitor. The doctor recorded that following the collision the claimant “went into shock and cannot remember much about the accident at all.” She sustained injuries to her neck and shoulders and has been troubled by intermittent symptoms. The claimant reported difficulty with sleep at night, waking usually as a result of nightmares and reliving the accident. She has lost interest in carrying out various activities, particularly around the home and can drive a motor vehicle for short distances only, but even then, finds it very stressful. The doctor diagnosed whiplash-associated disorder, cervical spine grade 2 with intermittent symptoms and

   
   

   non-verifiable right-sided radiculopathy, impingement syndrome of the right shoulder, and

   
   

   post-traumatic stress disorder. These injuries were caused by the accident. In the doctor’s opinion the claimant’s psychological injuries, rather than her orthopaedic injuries, are more likely to interfere with her future work and duties and work hours.

Reports from treatment providers

1. The joint bundle contains a number of consultation and treatment plans prepared by Dr So. The first plan is dated 24 August 2021 and the last 6 March 2025. The plan dated 24 August 2021 includes details of the accident, the claimant’s symptoms and treatment. It is recorded that following the accident she progressively became increasingly anxious, irritable, depressed, with poor stress tolerance and increased impulsivity. She reported severe insomnia and recurrent nightmares, with decreased memory, poor concentration and attention span. She ceased going to work and developed a phobic response to travelling in a car. The diagnosis and impression were head concussion and moderate to severe anxiety disorder. The treatment plan proposed has been considered. The claimant was unfit for work for six months.

2. The plan dated 14 September 2021 refers to “significant post traumatic stress symptoms”. On 18 November 2021 there was “static progress with minimal symptomatic improvement. On 24 February 2022 there is reference to a trial return to work. Progress was reported on

   
   

   25 August 2022. There was a deterioration in December 2022. Improvement in symptoms was reported on 20 April 2023. The claimant was at that time fit for light duties. On 30 May 2023 it was recorded that the claimant reported an acute anxiety episode two weeks before without an identifiable trigger. Nightmares were “troublesome” but not as intense. On 24 August 2023 it was reported that the claimant experienced a “triggering event” a month before, having witnessed a motor vehicle accident. She reported that “all the PTS symptoms returned but thankfully had been short lived”. The claimant was “helping out at the shop 2-3 times a week, often able to stay-on productively for most part of the day.” Her nightmares had reduced. She had episodic flashbacks. The diagnosis was moderate to severe anxiety disorder with post traumatic symptoms and “sensitive to SSRI side effects”.

3. Dr So’s consultation and treatment plan dated 14 December 2023 records that the claimant’s condition had gradually settled. Her sleep had improved. She has reduced her attendance at the shop as her level of stress tolerance remained low. A plan dated 9 May 2024 records that the claimant’s mental condition had deteriorated acutely after a “rejection from Allianz.” She experienced exacerbation of panic attacks, worsening of insomnia with recurrent suicidal ideation. She broke down in the middle of the consultation “in agony and with wailing”. On

   
   

   27 June 2024 it was reported that the claimant’s condition had further settled “albeit with chronic depressed mood and poor motivation”. She had not returned to her shop. On

   
   

   29 August 2024 it was reported that the claimant’s condition had further settled, and that there had been no further panic attacks or mental breakdown episodes.

4. On 6 March 2025 Dr So reported exacerbation of the claimant’s anxiety since her husbands “recent MVA”. The report records “Established Diagnosis: Anxiety disorder, with post traumatic symptoms. Relapsed”.

5. The clinical notes of Wilson Wong, psychologist, are handwritten and difficult to read. The Panel has, however, read and considered his reports. Mr Wong reported on 3 June 2021. The claimant reported dreams, that her mood was very bad, that she was irritable and would cry for no reason. She was not driving, was scared to travel long distances in a car and was not able to tolerate noise and sight of a big car. She could not remember the events of the accident. She was not sleeping well. The DASS21 scores were: stress – 30 severe – anxiety – 26 extremely severe – depression – 32 – extremely severe. Post-traumatic stress disorder with suppressed trauma/dissociation and brief conversion disorder were diagnosed. Recommendations for treatment were made.

6. Mr Wong’s report of 3 August 20221 has been considered. On 21 April 2022 Mr Wong reported that the claimant has “marked improvement overcoming her fear of driving”. Her mood was still a problem. On 7 June 2022 Mr Wong recorded the claimant’s history, her symptoms, treatment and DASS scores. He confirmed his diagnosis of post-traumatic stress disorder with suppressed trauma/dissociation and brief conversion disorder.

7. Mr Salmon’s report dated 22 July 2022 relates to an audiological assessment of the claimant. She presented with unilateral tinnitus in her left ear. She first became aware of symptoms a couple of weeks after the accident. The tinnitus was quite intolerable at first, and while she appears to be habituating to it over time, she continues to perceive it mostly in quiet, and experiences difficulties concentrating and falling asleep as a result. The claimant experienced significant sensitivity to everyday sounds soon after the accident but generally seems to be managing well. She reported that her functional hearing is good with no communication/hearing concerns identified. The results of the audiological assessment show a mild asymmetric sensorineural hearing loss in the left ear. Referral to an ENT was suggested. Mr Salmon recorded that the claimant should discuss her tinnitus with her psychologist.

8. Dr Low, ENT, reported on 27 November 2019. The claimant presented with 6-12 months symptoms of vague memory loss, sensitivity to sound, blurry vision and "foggy" in the head. The doctor thought that her symptoms raise the suspicion of benign intracranial hypertension. In a report dated 29 July 2021 Dr Low recorded that a repeated audiological assessment shows no deterioration of the sensory threshold. Further investigations and treatment were recommended. When he reported on 19 August 2021 the doctor stated that the claimant’s persistent left-sided tinnitus was still bothering her. On repeat examination both ear examinations were unremarkable.

9. Dr Nham, neurologist & neuro-otologist, reported on 4 September 2021. The doctor recorded that the claimant had been experiencing significant positional vertigo for three weeks associated with an increase in her left-sided tinnitus, which is longstanding. She also complained of headache and neck pain which had flared up since her motor vehicle accident in April 2021. She reported some memory issues and short-term memory deficit. The doctor thought it is possible the claimant has some mild concussive symptoms to explain her low mood and poor attention and short-term memory. The more persistent, annoying symptom for her was the positional vertigo that is either related to BPPV or vestibular migraine. In a report dated 10 September 2021 the doctor recorded that the claimant was complaining of positional vertigo especially when she turns to the right. She described some chronic neck pain and intermittent throbbing headaches associated with photophobia and phonophobia which have flared up since her car accident. The doctor noted the claimant has “depression, PTSD”. On vestibular testing, her lateral canal function and saccule and utricle function were normal. Recommendations were made with respect to her medication. There would be very little benefit from a surgical approach.

10. Dr Nham reported again on 11 November 2023. The claimant was mostly bothered by ongoing tinnitus. She also has throbbing headaches which are migrainous in quality. It is stated that she has “PTSD and is on a lot of medications for this”. The medication was helping with her anxiety “but not helping much with the tinnitus”. Recommendations were made for medication. If that did not work the next option would be surgery.

11. Dr Yuan, consultant cardiologist, reported on 1 June 2022. The claimant was referred for syncope and intermittent chest discomfort. Given her symptoms of chest discomfort and the discordance between her stress ECG and stress echo, clarification with the CT coronary angiogram was reasonable. The doctor reported on 27 July 2022. The claimant had been well from a cardiac point of view. She had not had any further episodes of chest discomfort or syncope. From a cardiac point of view there were no further investigations required. The claimant reported that with ongoing use of antidepressants she has felt an improvement in symptoms.

12. Dean Hammerton, exercise physiologist, reported on 5 September 2022. He diagnosed cervico-thoracic dysfunction and somatic referred leg pain. The claimant had completed her exercise physiology. She reported 100% subjective improvement in her condition.  Aggravating factors such as carrying objects, washing dishes and housework no longer reproduce symptoms. She no longer experienced intermittent sharp pain into her left thigh at night and was able to find a position of comfort at night to sleep. She was confident to resume supervised gym based exercise.

13. A discharge letter dated 13 August 2024 was prepared by Dr Eatough. The claimant presented with a range of symptoms including dizziness and vomiting. She had a background of depression and “abruptly stopped medication 1 month ago as [she was] feeling better, they believe they could use Chinese medication instead.” The impression was “[e]xacerbation of Meniere’s”.

14. Jianqui Xu’s undated report[2] records that the claimant began psychological treatment with her on 28 June 2023 and had completed 29 sessions. It is recorded that while her condition initially showed steady improvement, with some fluctuations along the way, her condition recently deteriorated significantly, leaving her in a much worse state than when she first started treatment. The event that led to the relapse was the claimant receiving a call from her lawyer on 3 May 2024 to inform her the insurer “had rejected the results of her injury assessment”. This news was “devastating to her”. Some days later while walking her dog, she suddenly felt an “overwhelming force piercing through her body and heard a powerful voice telling her, ‘Go die!’.” Two days later she experienced sudden, severe muscle pain throughout her body, an increased heart rate, and extreme discomfort in her internal organs, which triggered a profound near-death experience and a strong urge to die. This sensation persisted for several hours. She endured the distress until around 9:00am when she sent a text message to her psychologist, saying, "I can't take it anymore, please help me." She felt that the “insurer's attitude was a devastating blow. She felt deeply wronged and angry, leading to an overwhelming sense of powerlessness, helplessness, and hopelessness.”

    [2] Pages 182 – 184 of the joint bundle.

15. It is recorded that the accident triggered a freeze response, causing the claimant to dissociate from reality, and as a result, she cannot recall what happened. In Ms Xu’s opinion the insurer’s rejection of the claimant’s assessment result could have led to the relapse of post-traumatic stress disorder for the six reasons recorded in her report. In her opinion, the insurer's rejection likely “reactivated many of the underlying issues related to her trauma, such as feelings of helplessness, lack of control, and being invalidated, all of which could have contributed to the relapse of her PTSD.”

Clinical notes

1. There are multiple sets of patient health summaries from 1Health Medical Centre. The first in time were printed on 25 February 2023. The first entry was made on 28 February 2019. On 28 October 2019 the following was recorded: “fuzziness in the head last 4-5 months…forgets things easily but no red flag symptoms…L ear tinnitus…Reason for visit: Tinnitus Memory decline, fuzziness in head…”. The notes recorded on 26 April 2021 state:

   “…MVA in Gosford last Fri 23/04/2021

   concussion headache ongoing

   ongoing dizziness nausea

   passenger at back seat drivers side was wearing seatbelt

   rear-ended by car travelling at 120km+/hr

   daughter reports pt had transient anmensia [sic] lasting 30mins, could not remember what happened and where she was

   daughter reports pt acted like a child for 30mins

   resolved spontaneously

   BIBA Gosford Hospital

   had CT brain C spine+ abdomen NAD according to pt and daughter…

   …no anxiety/nervousness

   No depression

   No nightmare…”

2. The next set of 1Health Medical Centre notes were printed on 31 March 2025. The last entry is dated 19 March 2025. The notes include test results and radiological reports.

3. On 3 May 2021 the following was recorded by Dr Wang:

   “ …initially felt ok in terms of mood after MVA

   but is now experiencing increased anxiety, irritability and sleep disturbance

   pt barked at her dog when her dog barked the other day which got her daughter worried

   denies psychosis

   denies suicidal ideation…

   …Reason for visit:

   Whiplash

   Adjustment disorder with anxiety…”

4. The notes relating to consultations after the accident also include reference to the following: neck symptoms; reports of anxiety, irritability, and anxiousness; mood swings, impulsiveness and anger management issues, suicidal ideation; “no flashback of MVA, pt was asleep in the car at the time…”; nightmares; referral for psychiatric assessment; “L ear tinnitus flared up after MVA”; difficulty concentrating; anxiousness driving; driving short distances; pain causing more anxiety; “started dancing class with a friend on [M]ondays - has been helpful”; finding work stressful; panic attacks when driving and at work; panic attacks when at work; socially withdrawn; changes in medication, including dosages; waxing and waning psychological symptoms, and increased anxiety after her husband was involved in a motor vehicle accident.

5. Records from Gosford Hospital confirm the claimant attended on 23 April 2021 after being involved in a rear-end high speed motor vehicle accident. Various investigations were performed, and the findings have been noted. The discharge referral notes record:

   “…She had been a backseat passenger in a vehicle travelling 90km/hr and was rear ended by another vehicle travelling at approx. 110km/hr. Airbags were not deployed and she was wearing a seat belt. She had amnesia post the event and concern for a head strike and ?loss of consciousness. She was able to mobilise post the accident.

   On review she had mild tenderness around T6 and base of skull tenderness. Peripheral examination was otherwise normal, abdomen was soft with only mild tenderness in the right lower quadrant.

   Investigations were reassuring with normal haemoglobin and a normal CT brain, Spine and abdomen.

   The impression was of a likely mild acute head injury..”

6. The Hospital records include the Ambulance report. The report records a “GCS 15”. Post accident the claimant had repetitive questioning and confusion. She complained of pain in her head and neck.

7. Ryde Hospital notes relate to an attendance in May 2021 for neck pain.

8. Jianqui Xu’s clinical notes commence in June 2023. The last entry was made on 9 April 2025. The notes record the claimant’s psychological symptoms, including: panic attacks and depressed mood; breaking down and crying when hearing noise or seeing car taillights on the road at night; “panic reaction” after witnessing a car accident in August 2023; insomnia; nightmares; tiredness; the impact of work on her symptoms; worsening of symptoms after “completing the assessment arranged by the insurance company” in March 2024; increase in symptoms after feeling “mistreated by her insurer”; frequent “emotional breakdowns; muscle pain all over her body; heart palpitations and feels constantly fatigued; sudden feelings of fear, sadness, and loneliness, often crying out for help from her husband; social withdrawal, and her husband's car accident triggering a significant increase in her anxiety levels.

9. Dr So’s clinical notes are handwritten and difficult to read. The Panel has considered the consultation and treatment plans prepared by the doctor.

Other evidence

1. An activities of daily living assessment report dated 4 June 2021, prepared by Ms

   
   

   Tan-Stephen, refers to adjustment disorder with anxiety/depression, whiplash grade II, and concussion headache. It is recorded that the claimant is self-employed. Following the ADL assessment with the claimant in her home on 27 May 2021, the occupational therapist received a late-night text message from the claimant’s husband advising that she was presenting with thoughts of suicide. He was advised to contact emergency services and her GP. The report includes details of the claimant’s treatment and contact with her treatment providers, her reported symptoms and presentation at assessment. The report includes details of the claimant’s pre and post-accident functioning. She was reluctant to return to work.

2. The claimant was assessed as having reasonable functional physical capacities for undertaking her activities of daily living, however, she presented with reduced motivation for her previous ADL tasks due to psychological difficulties since the accident. The recommendations made have been considered by the Panel.

3. A return to work and recovery assessment report dated 4 June 2021 was also prepared by Ms Tan-Stephen. The report includes details of the claimant’s functional symptoms and her functional capacity. Her pre-accident self-employment involved greeting customers and processing EFTPOS payments, massaging customers, and overseeing the management of staff. She worked Monday to Friday, with occasional work on Sundays, from 9am to 6pm. Due to her high levels of emotional volatility and current psychological state, the claimant had reduced capacity to greet customers and process EFTPOS payments, manage staff and manage customers. Her psychological difficulties, febrile mood and lowered impulse control pose challenges in her customer facing role. Her fear of driving was also a barrier. The strategies identified to address the barriers, and the “plan of action” have been considered.

4. A “closure report” dated 30 September 2021 was prepared by Ms Tan-Stephen. The report records that the claimant remained medically unfit for work. The “summary of intervention’ and the recommendations have been noted.

1. A Pay Run comparison report records the claimant’s earnings from 30 April 2020 - 30 April 2021. A company search for BCA & W Pty Ltd records the company was registered on
   19 February 2019. The claimant is named as a director and secretary.

2. The joint bundle includes a summary of the certificates of capacity. The first certificate is dated 26 April 2021 and the last 19 March 2025. The Panel has considered the summary of the certificates, including the claimant’s work capacity as recorded in the summary.

3. The Panel has considered the photographs of claimant’s vehicle. Damage to the rear of the vehicle can be seen.

SUBMISSIONS

Insurer’s submissions

1. The insurer relies on written submissions dated 1 May 2025. The insurer argues that the claimant’s accident caused psychological injury does not exceed the permanent impairment threshold for the purposes of the MAI Act as a significant component of her psychological symptomatology is attributable to circumstances other than the accident and is not causally related to the accident.

2. The insurer submits that the accident-related whole person impairment, if any, must be calculated and subtracted from the current whole person impairment arising from subsequent and unrelated injuries.

3. In its summary of the medical evidence the insurer refers to the claimant’s pre-accident psychological history, her complaints of fuzziness in the head, forgetting things, left ear tinnitus (October 2019), symptoms of vague memory loss, sensitivity to sound, blurry vision, being “foggy” in the head (November 2019), fatigue, throat clearing, leg soreness and weakness, and worries about cancer (February 2021).

4. The insurer notes that the claimant’s GP recorded on 26 April 2021 that she had no anxiety, nervousness, depression or nightmares. Various symptoms reported by the claimant to her GP are referred to.

5. The insurer argues that the claimant does not satisfy criterion A for post-traumatic stress disorder because she was asleep when the accident occurred and had no memory of the accident. The insurer also relies on Dr George’s opinion that a diagnosis of post-traumatic stress disorder is not established.

6. In the insurer’s submission, as at 2022 the claimant had a chronic adjustment disorder with mixed anxiety and depressed mood, secondary to her physical complaints and the “consequences of the accident generally”.

7. The insurer refers to the claimant’s involvement in the business with her husband, records that “her mental status was tied to the weather”, that notes that she was starting dance classes with a friend, growing flowers, and making cakes.

8. The insurer’s submissions address three subsequent events: witnessing a car accident in August 2023, assessments by Medical Assessors, and the involvement of the claimant’s husband in a motor vehicle accident. The insurer argues that these events were not causally related to the subject accident, that they resulted in her conditions becoming worse, and that the subsequent impairment caused by these events must be calculated. In the insurer’s submission the chain of causation was broken after the subsequent events. The insurer disputes the claimant’s current impairment is accident related.

9. At [67] – [84] the insurer addresses what it says are errors in Medical Assessor Shen’s assessment.

10. The insurer also addresses each of the PIRS areas of functioning. With respect to social and recreational activities the insurer disputes the claimant is moderately impaired, in circumstances where she stated she had over 10 friends in the local area and many other friends in China, and since the accident, was seeing her friends once every few months, attended three to four social events since the accident, pottered around her garden, and maintained regular contact with her daughter. The insurer argues that “while her social events were fewer than before the accident, she does not require a support person, so must only be class 2.”

11. With respect to social functioning, the insurer disputes the claimant is mildly impaired, in circumstances where she stated her relationship with her husband had been very good and she maintained regular contact with her daughter, who returns home to visit her once a week.

12. In relation to concentration, persistence and pace, the insurer argues that given his findings on examination the Medical Assessor erred in finding class 3. In the insurer’s submissions, the Medical Assessor’s finding “she was alert and sustained concentration for the entire assessment, means the allocation should have been class 1”.

13. With respect  to adaptation, the insurer argues that the claimant’s “ability to continue operating a full time massage parlour as sole director and shareholder, is a continuation of function which attracts no impairment, class 1.”

14. The insurer submits any current impairment causally related to the accident does not result in a permanent impairment which exceeds the 10% threshold.

Claimant’s submissions

1. The claimant relies on written submissions dated 8 May 2025. Those submissions record that she also relies on written submissions dated 14 May 2024. Her case is that the degree of her permanent impairment as a result of the psychological injury caused by a motor accident is greater than 10%.

2. The claimant argues that:

   a)    witnessing the car accident in August 2023 was at most a temporary aggravation of her psychological condition caused in the subject accident and there “should be no deduction” in relation to witnessing that accident;

   b)    the insurer has failed to prove that her psychological symptoms increased as a result of “various issues involved with the claim”;

   c)     the insurer has failed to provide “proper reasoning and evidence as to why there should be any reduction in the whole person impairment of [her] psychiatric injury allegedly not related to the subject motor vehicle accident, and

   d)    the Review Panel would find that there was no error by Medical Assessor Shen and that “his finding on whole person impairment and causation should stand”.

3. The claimant’s written submissions dated 14 May 2024 were filed in reply to the insurer’s application for review of Medical Assessor Shen’s assessment. The focus of the submissions is explaining why the application for review should not be allowed, including why the claimant says the President would not be satisfied there was reasonable cause to suspect the assessment is incorrect in a material respect.

4. The claimant argues that the classes allocated to each of the PIRS domains of functioning by Medical Assessor Shen were correct and supported by the evidence.

5. With respect to social and recreational activities the claimant submits that reference to her attending 3-4 social events in the space of three years would be indicative that she rarely attends social events, and that “no error is demonstrated” in Medical Assessor Shen’s finding of a moderate impairment in this domain. With respect to social functioning, the claimant argued that the Medical Assessor correctly found there was a mild impairment. In relation to concentration, persistence and pace, she referred to the Medical Assessors findings on examination and argued that he correctly found there to be a moderate impairment. She submitted it was “ingenuous to suggest that if a claimant is able to sustain concentration for the duration of [an] assessment that they have no impairment or deficit” and argued the Medical Assessor provided reasons as to why she may appear to have been able to sustain her concentration throughout the assessment, being that her impaired concentration was not capable of being observed in such a brief encounter.

6. The claimant argued that it is not incumbent on a Medical Assessor “to address each and every piece of evidence before him”, and in this regard referred to Dunbar v Allianz Australia Insurance Limited (2015) 70 MVR 15 at [78] and QBE Insurance Limited v Alawia [2016] NSWSC 1975 at [61].

7. With respect to adaption, the claimant submitted that she has a severe impairment and that:

   “… while [she] is able to maintain her business there is no factual basis to assess the level at which [she] is able to perform in this role and it would be erroneous to assume that because [she] engages in it, she does so without impairment.”

8. In support of this submission the claimant refers to Rutland v Allianz Australia Ltd [2014] NSWSC 1583 at [85]-[89].

1. The submissions also record that: “[i]t bears repeating that the [Medical] Assessor is required to rely on their own skill and judgment when applying the PIRS. Indeed, it is described as the ‘most important tool’”.

RE-EXAMINATION FINDINGS

1. The claimant was re-examined by Senior Medical Assessor Mason and Medical Assessor Verma by MS Teams on 11 July 2025. She attended the re-examination with a Mandarin interpreter.

History

Psychosocial history and pre-accident history

1. The claimant is a 54-year-old woman living  with her husband. They have an adult daughter who resides in China. Her husband owns a factory that manufactures metal and steel used in construction work. She owns a massage parlour in a shopping centre. She was born in China and was an only child. She reports that she was very cherished, and her parents loved her deeply. Her father worked as a teacher, and her mother was a homemaker. She completed her schooling and then obtained a diploma in accounting. Her husband migrated to Australia in 2004, and she joined him in 2005.

2. She later started working and then opened a cafe about a year later. Since then, she has opened three different cafes in Parramatta, Eastwood, and Burwood. She said she would open the cafe at 4.30pm and close around 2 or 3 pm, then return home. She closed the Burwood cafe due to construction work near the station and sold the other two in 2011. The claimant reported that before the accident, she used to work at her Chinese massage parlour from Monday to Friday, with a receptionist assisting her. She recalls being quite high functioning and happy, even after long hours of work; upon returning home, she still had energy for household chores. She usually worked from about 9.00pm to 6.00pm and employed around 11 staff members, including part-timers and full-timers.

3. She stated that she continues to employ a similar number of staff, although she experiences a high turnover of employees. Currently, she said “cannot go to work and stays at home.” She explained that after about 6 to 12 months following her accident she returned to work but only for “2 to 3 hours per week” due to conflicts with customers and staff. The Medical Assessors attempted to clarify her work hours, noting that contemporaneous documents indicated she worked two days a week in 2023, and in another assessment it was recorded that she worked half a day weekly. The claimant responded, “I did not have any fixed hours or work.” She clarified that her husband visits the shop three days a week, and she sometimes accompanies him. When asked about her current work routine, she replied, “I do not regularly go to work now.” The Medical Assessors attempted again to clarify how often she works, but the claimant became visibly frustrated, saying, “There are some stages.” She reported that she used to go to work with her husband, but her condition worsened, and she couldn't remember the last time she attended work with him.

4. The claimant said that after selling her cafes in 2011, the massage parlour was transferred to her name in 2020. She said that the massage parlour is currently struggling financially, but she wasn't sure why. Later, she added that her husband manages the parlour at least three days a week, and he looks after her the other four days. The claimant said that young people in China nowadays tend not to have traditional ceremonies, but they are planning to hold one for her daughter this year.

1. Regarding her past history, she said that between 2009 and 2012 her father passed away, and she felt quite low and used to cry. She saw a doctor but was not prescribed any medication. She saw a psychologist twice and then felt better afterwards. She categorically denied any mental health issues like low mood, depression, or anxiety at the time of the accident. She denied using any illicit drugs, gambling, or smoking cigarettes. She would occasionally drink alcohol with her husband and would only “sometimes take one sip.”

History of the motor accident

1. The subject accident occurred on 23 April 2021. The claimant was initially reluctant to provide details of the accident and said, “I do not want to.” With the Medical Assessors' encouragement, she stated that she was in the seat and “chatting with her daughter.” She later said that she does not remember as she lost consciousness and did not know what happened. She estimated she was unconscious for about half an hour and woke up in the ambulance. The Medical Assessors then pointed out the documents indicating she was sleeping, but she again stated she was not sleeping.

2. The Medical Assessors attempted to clarify how the accident occurred. The claimant had been told that a car was driving at high speed and hit about four to five vehicles, including theirs. She was unaware of the speeds of the vehicles. The Medical Assessors then tried to clarify the situation since the ambulance records stated “nil LOC,” but the claimant maintained she was unconscious and also said “I do not know when and what I said” to the ambulance. She mentioned that her husband had told her she was repeating the phrase “where are we” multiple times. The Medical Assessors have noted the medical records, including ambulance reports and discharge documentation summary.

Details of any relevant injuries or conditions sustained since the motor accident

1. The claimant did not report any post-accident injuries or conditions.

History of symptoms and treatment following the motor accident

1. The claimant reported that shortly after the accident she began experiencing pain symptoms. She had pain in her neck and shoulder, for which she received physiotherapy. At one point, she used to “pass out 4 to 5 times” and had to be taken to hospital once but was discharged soon after. She said that because she did not receive adequate treatment, she stopped going to hospital for the same reason. She was unable to do “anything at all” because of the ongoing pain. She felt “weak and fatigued and did not have the motivation to do anything.”

2. She also experienced tightness in her shoulder, felt hyper-panicky, sweated excessively, and felt breathless. She would have episodes where she felt she was going to die within seconds. These episodes lasted a short while, and she would need to lie down, after which the episodes would improve. She also experienced headaches on the right side and underwent investigations for her left ear, along with breast and stomach pains. She reported that when she returned to work after about a year, she started having conflicts with employees and customers. She then took a break and stayed at home. She later tried returning to work with her husband but couldn’t handle the work.

3. The claimant reported that she would “start crying when she would see customers with children.” She also heard voices calling her name when no one was around. She felt overwhelmed and unable to regulate her emotions. She also had thoughts of harming herself whenever she saw a knife, but never actually harmed herself. She felt irritable and personally agitated.

Current symptoms

1. The claimant reported that she continues to experience pressure on her neck and chest. She feels this pressure and occasionally has episodes where she feels she is going to die. She is often tired and sensitive to sound and any noise, and she cannot talk for long as it exhausts her. She spontaneously mentioned that whenever “guests come to her house she will hide in her room.” She also said that she cannot work because of extreme sensitivity to sound at her workplace. She reflected that these symptoms fluctuate and have worsened since last year, as “the insurance company did not acknowledge her symptoms.”

2. She also spontaneously shared that she did not want to tell the “other Assessor” that she does not brush her teeth or wash her face regularly because she did not want others to think she is lazy. She continues to experience a pain that feels like ants running across her body, and the pain is everywhere, making it difficult to localise. She has thoughts of harming herself because of the pain. She mentioned that she is unable to sleep and relies on medications. Her husband has to watch over her, as she often has thoughts of harming herself.

3. She recalls a particular night when she felt heaviness in her chest and was in severe pain throughout her body. She tried to find sleeping tablets but couldn't. Her husband then came to her aid, and they cried together in each other's arms.

4. At this point during the re-examination, the claimant went outside to call her husband. Afterwards, she returned and sat in front of the camera. Meanwhile, her husband came in with a knife. The Medical Assessors interrupted and confirmed what her husband had handed over to her. She stated that her husband had handed her the knife. The Medical Assessors then asked her to remove the knife from the room, which she complied with. She said that she just wanted to show the knife that she has been wanting to use to harm herself. Her mood is “usually low and she feels like crying for no reason.” 

5. She has mental breakdowns and whenever she hears her husband speaking on the phone it further agitates her.  She experiences low energy, and lack of motivation. She also struggles with poor appetite with some improvement since she has been on the medications. She is unable to sleep properly as she has “images in front of her.”  She has “nightmares of monsters trying to eat her and of a meat processing machine blending her into  mince or trucks crashing her into pieces.”

6. The claimant further added that whenever she starts feeling better, her pain increases, which makes her “irritable and worry again.” The Medical Assessors asked her if she had any other symptoms, to which she replied that “I am very sensitive to sound.” She also is triggered by red tail lights and at times has “thoughts of harming her husband.” She, however, said that she knows her husband is “good at heart” and denied having any specific plans or intent of harming him. She acknowledged that she would not act on such thoughts. She continues to hear occasional voices of her husband at times, but when she looks back, she realises that no one is around.

7. The Medical Assessors towards the end of the re-examination enquired why she had been screaming at them throughout the assessment, to which she said that “I cannot control myself and today's interview was a bit long.”

8. Treatment consisted of attending her general practitioner. She has been referred to two psychologists and a psychiatrist. The psychiatrist has prescribed psychotropic medication which is listed below.

Current and proposed treatment

1. The claimant is currently seeing her psychologist once a week or every fortnight. She also sees her GP for additional support. She visits her psychiatrist once a month to every three months. She is currently on Desvenlafaxine 150mg, Agomelatine 50mg, Minipress 1mg at night, Diazepam PRN, and Pantoprazole 40mg. She is also on Meloxicam for pain relief but does not take it regularly, only when necessary.

Details of any relevant injuries or conditions sustained since the motor accident

1. The claimant became distressed when the insurer rejected her claim. She was also distressed after witnessing a motor vehicle accident and when her husband was involved in a minor motor vehicle accident. He did not sustain injuries, and she has no ongoing concerns.

2. It is the opinion of the Medical Assessors that while these events may have had a transient impact on the claimant’s functioning they did not result in a permanent deterioration of her functioning and did not result in additional permanent impairment.

Clinical Examination

Mental State examination

1. The claimant was assessed via video with the assistance of a Mandarin speaking interpreter. The re-examination was difficult to manage because the claimant tended to speak over the top of the interpreter and not give her time to interpret what she said. She then became impatient because the interpreter was careful to report her comments accurately. The claimant became more and more agitated and visibly frustrated as the interview progressed. At one point, she asked the Medical Assessors why she was being questioned about such “irrelevant information”, especially when the questions pertained to her employment. The Medical Assessors tried to explain the reason for this, but she remained irritable, agitated, and at times distressed. At one stage, she left the room where she was sitting, started yelling, and called her husband. She then became quite distressed and said, “the interpreting was quite slow.” The Medical Assessors had no problems with the interpreter.

2. The claimant’s husband later entered with a teacup to help her calm down. Subsequently, he came in with a knife to show the knife she was contemplating using for self-harm.

3. The claimant was dressed casually and was not dishevelled. She was teary at times during the assessment. She provided a clear account of her symptoms and difficulties and was quite over-inclusive at times, requiring redirection. However, she did not give much detail about the accident itself. Her speech was spontaneous, normal in volume and tone, and she responded quickly to questions, answering confidently and assertively and at times aggressively. Her thoughts were logical and goal-directed. She reported ongoing intrusive thoughts, pain symptoms, feelings of being low, low energy, poor appetite, and nightmares.  There was no evidence of mania, psychosis, or perceptual abnormalities.

4. She hears voices at times. In the opinion of the Medical Assessors, these were pseudo hallucinations not true hallucinations and do not indicate psychotic illness.

5. She demonstrated reasonable insight into her condition, and her judgment has remained intact. She has been able to engage regularly with her treatment providers. She occasionally has thoughts of harming herself but finds her family a protective factor. She also had thoughts of harming her husband but acknowledged that her husband has a good heart and that she would never actually harm him.

Current functioning

1. Self-care: The claimant reported that she does not brush her teeth and that her “hands are too weak to brush." She showers once every three days. She said she feels fatigued and tired and therefore does not want to wash herself. She denied experiencing any significant pain symptoms currently. She has gained weight from 52 to 60kg and attributed this to her medications. She said she is able to do household chores such as cooking and cleaning “only when it gets dirty." She stated, “you cannot expect a man to do household chores." She no longer cares about her appearance and has stopped using makeup products.

2. Social and Recreational Activities: She previously enjoyed cooking, baking, dancing, and gardening. She still gardens as before but no longer enjoys cooking and baking due to fatigue. She reported that her friends invite her out, but she does not go because she often feels agitated. She said, “I want people to invite me, but I do not want to go out." She cannot remember how many times she meets with friends but estimates about once a month. The Medical Assessors highlighted that she had previously reported to another Medical Assessor that she has 10 friends living locally and many in China, with whom she has regular contact. She later stated that her friends continue to visit, similar to before, but she no longer cooks for them. They come once a week or once every two weeks, and her husband often cooks for them. She reported that when they visit, she can sit with them and have conversations, but when her husband's friends visit, she stays in her room.

3. Travel: She leaves home to visit the local shopping mall and is able to drive there. She can also drive to her doctor's appointments and to buy groceries, for up to 30 minutes. She can drive to work from Epping to Chester Hill. She denies any interstate or overseas travel but plans to travel to China in September 2025. She finds long-distance driving challenging due to anxiety.

4. Social Functioning: She maintains positive relationships with her husband and daughter. She said her husband loves and cares for her. However, they once argued when he mentioned that he has to work and cook for her. She reflected that he has done quite a lot for her, but she still criticises him and gets angry, though there have been no periods of separation or divorce. She also reported losing some friendships because of her mental health.

5. Concentration, Persistence, and Pace: The claimant reports she can focus for about "20 minutes and then gets distracted." She watches TV shows but gets distracted by her phone. She denies playing any mobile or video games. She can read books for a maximum of 20 minutes. At the re-examination, the Medical Assessors found the claimant was alert, cognitively intact, and able to sustain her concentration for almost two hours during the assessment. She was not distracted and remained focused throughout.

6. Adaptation: The claimant reports that she remains the director of her company, which owns a massage parlour, and has been receiving profits. She said she does not feel very well and has heard about a new medical treatment device developed in China, for which she plans to travel in September for treatment.

Comments of consistency

1. There were inconsistencies noted throughout the assessment which the Medical Assessors highlighted as the re-examination went on including: the claimant reported that she was unconscious soon after the accident, however, the ambulance records state otherwise. She also reported that she was chatting with her daughter, however, the contemporaneous reports mentioned otherwise, and it was difficult to obtain a clear description of her capacity for work and to reconcile differing reports of her work capacity.

Diagnosis and reasons

1. The claimant was involved in a motor vehicle accident where she was sitting in the rear seat and her vehicle was rear-ended by another car. She was able to self-extricate from the car and move to the front passenger seat. She reported experiencing both physical and psychological symptoms from the accident. At the time of assessment, the claimant reported feeling irritable, ongoing anxiety, tinnitus, low mood, emotional dysregulation, insomnia with recurrent nightmares unrelated to the accident, poor attention, concentration, and lack of motivation. The Medical Assessors agree that her presentation is consistent with the diagnosis of persistent depressive disorder. The diagnosis is based on the DSM-5 criteria. The relevant diagnostic criteria for persistent depressive disorder with anxious distress have been highlighted in bold:

   -Depressed mood for most of the day, for more days than not, as indicated by subjective account or observation by others, for at least 2 years.

   -Presence while depressed of two or more of the following: 

   ·Poor appetite or overeating

   ·Insomnia or hypersomnia

   ·Low energy or fatigue

   ·Low self-esteem

   ·Poor concentration or difficulty making decisions

   ·Feelings of hopelessness

   -During the 2 year period of the disturbance, the person has never been without symptoms from the above two criteria for more than 2 months at a time.

   -Criteria for MDD may be continuously present for 2 years, in which case patients should be given comorbid diagnoses of Persistent Depressive Disorder and MDD.

   -There has never been a manic episode, a mixed episode, or a hypomanic episode and the criteria for cyclothymia have never been met.

   -The symptoms are not better explained by a Psychotic Disorder.

   -The disturbance is not due to the direct physiological effects of a substance (e.g., a drug of abuse or a medication) or a general medical condition.

   -The symptoms cause clinically significant distress or impairment in important areas of functioning

2. The Medical Assessors agree that she does not meet the criteria for post-traumatic stress disorder. Criterion A is not met, and she does not have enough criteria B symptoms to satisfy the diagnosis. The Medical Assessors also considered major depressive disorder; however, she does not have enough criterion A symptoms to be diagnosed with major depressive disorder. An adjustment disorder was not diagnosed because DSM-5-TR criteria for persistent depressive disorder with anxious distress are met.

Causation and reasons

1. The Medical Assessors asked the claimant how she believed the accident had impacted her mental health, to which she said, “I do not know, as I do not understand things.”  The Medical Assessors agree that the symptoms the claimant has been experiencing are related to the accident; there is a temporal and causal association between the accident and these symptoms. There are no other predisposing, precipitating, or contributing factors that could have impacted her mental health and caused the current symptoms, apart from the accident. While not life threatening, the accident was frightening and was capable of causing a psychiatric condition. The Medical Assessors are satisfied the accident did cause a persistent depressive disorder with anxious distress.

DEGREE OF PERMANENT IMPAIRMENT

Psychiatric Impairment Rating Scale

1. The determination as to permanent impairment is made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) and Part 6 of the Motor Accident Guidelines.

Psychiatric diagnoses	1. Persistent Depressive Disorder.
	Psychiatric treatment description	Psychological interventions, psychiatric consultations and psychotropic medication .

Category	Class	Reason for Decision
1.   Self-Care and Personal Hygiene	3	The claimant reported that she does not brush her teeth and her “hands are too weak to brush.” She showers once every three days and has to be prompted at times by her husband. She said that she feels fatigued and tired and hence does not want to wash herself. She denied having any significant pain symptoms currently. She has gained weight from 52 to 60kg and attributed the weight gain to the medications. She said that she is able to do household chores including cooking and cleaning “only when it gets dirty.” She no longer cares about her looks and has stopped using makeup products. In the clinical judgement of the Medical Assessors she has a moderate impairment.
2.   Social and Recreational Activities	2	Before the accident she enjoyed cooking, baking, dancing, and gardening. She continues to garden.  She no longer enjoys cooking and baking as she feels fatigued.  She reported that her friends ask her out, but she does not go out as she often feels agitated. She said “I want people to invite me, but I do not want to go out.”  She said that she cannot remember how many times she meets up with friends. She said that she meets up with them once every month. The Medical Assessors highlighted that she had reported to the other assessor that she has 10 friends who live in the area and many friends in China and has regular contact with them.  She then said that her friends continue to visit her like before, but she no longer cooks for them.  She said that they come once a week to once in two weeks and her husband often cooks for them. She reported that when they come over, she is able to sit with them, is actively involved with them and has conversations with them. However, when her husband's friends come over, she stays in her room. Treatment records state that she has attended dancing classes with a friend. The descriptors in table 6.12 have been considered and the evidence evaluated. In the opinion of the Medical Assessors the claimant is able to occasionally go out to social events without needing a support person and is capable of becoming actively involved. The Medical Assessors determined that the persistent depressive disorder has resulted in a mild impairment of functioning in this domain.
3.   Travel	2	She leaves her home to go to the local shopping mall and is able to drive there. She also is able to drive to her doctor's appointment and to buy food. She is able to drive for up to 30 minutes.  She can drive to work from Epping to Chester Hill. She denied having any interstate travel or any overseas travel.  She plans to travel to China in September 2025. She struggles to drive to faraway places because of anxiety when she drives. She has a mild impairment.
4.   Social Functioning	2	She continues to maintain positive relationships with her husband and daughter. She said that her husband loves her and cares about her. However, once they had an argument when he commented that he has to work and cook for her. She reflected that he has done quite a lot for her, but she still criticises him and gets angry with him, there have, however, been no periods of separation or any divorce. She reported losing some friendships because of her mental health but continues to see friends. She has a mild impairment.
5.   Concentration, Persistence and Pace	2	The claimant reported that she is able to focus for at least “20 minutes and then gets distracted.” She watches TV shows and gets distracted with her phone. She denied playing any mobile or video games. She said that she is able to read books for up to 20 minutes maximum.  At the re-examination the claimant was quite alert, was cognitively intact, and was able to sustain her concentration for almost two hours during the assessment.  She was not distracted and was able to concentrate and focus throughout the assessment. When the claimant’s functioning in this domain is considered in totality, and by reference to cl 6.209 of the Guidelines and the descriptors in table 6.15, it is the clinical judgment of the Medical Assessors that she has a mild impairment.
6.  Adaptation	4	The claimant reported that she continues to be the director of her company which owns the massage parlour.  She is able to travel to her business. Since the accident the claimant has been able to attend and perform some tasks in her business, including undertaking light work. Her pace is reduced, and her attendance has been  erratic. She is capable of performing some tasks associated with running her business from home. In the opinion of the Medical Assessors the claimant can work one or two days at a time less than 20 hours a fortnight. The Medical Assessors agree that she has a severe impairment.
List classes in ascending order: 2,2,2,2,3,4
Median Class Value:2
Aggregate Score: 15
% Whole Person Impairment: 8%

*%WPI ^{= Percentage Whole Person Impairment}

Apportionment – pre-existing/subsequent impairment

1. The Medical Assessors have not made any apportionment as the claimant does not have any pre-existing impairment or subsequent impairment.

Effects of treatment

1. The claimant’s symptoms remain almost the same as they were soon after the accident. There has not been any significant improvement in her symptoms despite the treatment. The Medical Assessors hence did not apportion any impairment because of effect of treatment.

Conclusion – permanent impairment

1. Degree of permanent impairment caused by the motor accident - 8%

DETERMINATION

1. Prior to the accident the claimant was treated by a psychologist following the death of her father. When re-examined by the medical members of the Panel she denied any mental health issues like low mood, depression, or anxiety at the time of the accident. The clinical notes from the claimant’s general practitioner do not contain any reference to psychological symptoms in the 12 months prior to the accident.

2. Having evaluated the totality of the evidence, the Panel is not satisfied, on the balance of probabilities, that at the time of the accident the claimant was suffering from a diagnosable psychological condition or that there is objective evidence of a pre-existing impairment within the meaning of cl 6.31 of the Guidelines.

3. The Panel has given weight to the contemporaneous evidence that the claimant experienced psychological symptoms following the accident. That evidence includes:

   a)    the application for personal injury benefits dated 29 April 2021 that contains reference to “post-accident shock”, “high anxiety”, difficulty sleeping, and fatigue;

   b)    reference by Dr Wang in the 1Health Medical Centre clinical notes on 3 May 2021 to the claimant experiencing increased anxiety, irritability and sleep disturbance;

   c)     the subsequent symptoms recorded in the 1Health Medical Centre clinical notes, including reference to anxiety, irritability, anxiousness, nightmares and panic attacks;

   d)    the symptoms recorded in the records of the claimant’s treating psychologists, Mr Wong and Ms Xu, and

   e)    the symptoms the claimant reported to Dr George, psychiatrist, when he examined her in May 2022 and Dr Chow, psychiatrist, when he examined her in March 2023.

4. The Panel also gives weight to the symptoms reported by the claimant when she was re-examined by its medical members on 11 July 2025, including irritability, ongoing anxiety, low mood, emotional dysregulation, insomnia with recurrent nightmares unrelated to the accident, ongoing intrusive thoughts, and pain symptoms.

5. The Panel agrees with and adopts the opinion of its medical members, both of whom are psychiatrists, that the claimant satisfies the diagnostic criteria for persistent depressive disorder with anxious distress.

6. For the reasons given by the medical members of the Panel in their re-examination findings, the Panel is not satisfied the claimant meets the diagnostic criteria for post-traumatic stress disorder, major depressive disorder, or adjustment disorder.

7. The Panel is satisfied that the accident could have caused a persistent depressive disorder. The Panel is also satisfied that the contemporaneous evidence supports a finding that there is a temporal connection between the accident and the claimant’s psychological symptoms and that her symptoms were caused by the accident. The Panel finds that the accident was a necessary condition of the occurrence of the persistent depressive disorder with anxious distress.

8. The Panel has evaluated the findings of Medical Assessor Shen, Dr George and Dr Chow. Dr George saw the claimant over three years ago. Dr Chow assessed her over two years ago. Medical Assessor Shen assessed the claimant in March 2024. The Panel notes that the evaluation of impairment should only consider the impairment as it is at the time of the assessment (cl 6.21 Guidelines) and that the clinical judgement of the medical members of the Panel, both of whom are psychiatrists, is the most important tool in the application of the PIRS: cl 6.217 Guidelines.

9. The medical members of the Panel re-examined the claimant on 11 July 2025, have assigned classes to each of the PIRS domains of functioning, and given reasons for their findings in the table and in the body of their re-examination findings. The Panel agrees with and adopts the examination findings of its medical members including their specific findings with respect to each PIRS category and permanent impairment. Their assessment was recent, comprehensive, and conducted by both medical members of the Panel each of whom agreed on the examination findings. The Panel provides the following further reasons with respect to the classes it has assigned to each of the PIRS domains of functioning.

10. The Panel has found the claimant had a moderate impairment with respect to self care and personal hygiene whereas Medical Assessor Shen and Dr Chow found a mild impairment. The Panel noted a deterioration in the claimant’s self-care and personal hygiene since the assessment undertaken by Medical Assessor Shen and Dr Chow. There has been a change in the frequency of her undertaking basic personal hygiene activities, including showering every three days instead of every day, as noted in Medical Assessor Shen’s assessment.

1. Medical Assessor Shen and Dr Chow found there was a moderate impairment with respect to social and recreational activities. In addition to the matters referred to by the medical members of the Panel in their re-examination findings with respect to this domain of functioning, Dr Zhang recorded in her clinical notes on 22 April 2023 that the claimant had “started dancing class with a friend on [m]ondays – has been helpful” and on  20 May 2023 the doctor recorded that the claimant was attending regular dance classes with a friend, and that she was “finding her mood is better during these times”. Having evaluated the totality of the evidence, including the findings of its medical members following their examination of the claimant, the Panel is satisfied she is capable of going out and attending events such as a dance class, and that she is able to become actively involved. The Panel is satisfied that, when regard is had to the impact of the persistent depressive disorder on the claimant’s functioning in this domain, she is able to occasionally go out to social events without needing a support person. The Panel finds the claimant has a mild impairment with respect to social and recreational activities.

2. Both Medical Assessor Shen and Dr Chow found there was a mild impairment in the domains of travel and social functioning. For the reasons given by its medical members the Panel has also found the claimant has a mild impairment in these domains.

3. With respect to concentration, persistence and pace Medical Assessor Shen and Dr Chow found there was a moderate impairment. Concentration, persistence and pace is defined as the ability to sustain focused attention, for long enough to permit the timely completion of tasks commonly found in work settings. The Panel has considered the descriptors in Table 6.15 and has found the claimant has a mild impairment. The Panel is satisfied the claimant can focus on intellectually demanding tasks for up to 30 minutes. Although not determinative, it is relevant that the claimant was able to sustain her concentration for almost two hours during the re-examination by the medical members of the Panel, was not distracted and was able to concentrate and focus throughout the re-examination. In this regard the Panel agrees with the observations made in QBE Insurance (Australia) Limited v BPO [2025] NSWPICMP 388 at [167].

4. Adaptation refers to the repeated failure to adapt to stressful circumstances; cl 6.210 Guidelines. Dr Chow found there was a moderate impairment in adaptation and Medical Assessor Shen found there was a severe impairment.

5. The Panel is satisfied that as a result of her persistent depressive disorder the claimant cannot undertake all her pre-accident work duties, including the duties associated with running her business. The claimant is capable of travelling to work. She continues to have some involvement in her business; she reported to the medical members of the Panel that she continues to be the director of her company which owns the massage parlour. She has been capable of attending the massage parlour and performing some duties. Her attendance has been erratic, and her pace has been reduced.

6. Having evaluated the impact on the claimant’s functioning caused by her psychological injury and giving weight to the clinical judgement of its medical members, the Panel is satisfied she could work for less than 20 hours a fortnight undertaking work that requires less skill and is less stressful. The Panel finds the claimant has a severe impairment of functioning with respect to adaptation.

7. In its submissions, the insurer refers to three events that occurred after the accident that it argues are relevant to both causation and the claimant’s impairment: the claimant witnessing a car accident in August 2023, her response to assessments by Medical Assessors, and the involvement of her husband in a motor vehicle accident. The insurer argues that these events were not causally related to the accident, that they resulted in her condition becoming worse, and that the subsequent impairment caused by these events must be calculated.

8. The Panel has evaluated the post-accident records from treatment providers that refer to the subsequent events referred to by the insurer. The clinical notes from 1Health Medical Centre record the claimant experienced an increase in anxiety after husband was involved in a motor vehicle accident. Ms Xu’s notes record that the claimant experienced a “panic reaction” after witnessing a car accident in August 2023, that she reported worsening of symptoms after “completing the assessment arranged by the insurance company” in March 2024, and complained of an increase in symptoms after feeling “mistreated by her insurer”.

9. The Panel agrees with and adopts the opinion of its medical members that while these events may have had a transient impact on the claimant’s functioning they did not result in a permanent deterioration of her functioning and did not result in additional permanent impairment. The Panel is not satisfied there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment.

10. The Panel finds that the claimant has a permanent impairment of 8% as a result of the accident caused persistent depressive disorder with anxious distress.

The certificate under review is revoked

1. The Panel’s findings with respect to the claimant’s accident caused psychological injuries and impairment differ from the findings made by Medical Assessor Shen. The Panel revokes Medical Assessor Shen’s certificate dated 27 March 2024 and issues a new certificate that reflects its findings.

De-identification of the decision

1. These reasons contain sensitive personal information. Having weighed the matters referred to in r 132(4) of the Rules, including the safety, health and wellbeing of the claimant, and whether the public interest in giving the direction significantly outweighs the public interest in open justice, the Panel is satisfied that its decision should be de-identified before it is published.

2. The Panel directs that, pursuant to r 132 of the Rules, the decision be de-identified prior to publication.